The loss of a friend, family member, or significant other can have a devastating impact on the individuals in that person’s life. While any loss is a tragic and unfortunate event, in certain situations, the death of the beloved (or in legal terminology, “the decedent”) is due to the actions or inactions of another person. As a result, the Massachusetts legislature enacted Massachusetts General Law Chapter 229– the Wrongful Death Statute. The statute was originally enacted in 1840 by the legislature, but subsequently underwent a great deal of change due to a 1973 amendment to the law. The resulting law establishes recovery for the statutory beneficiaries of the decedent by measuring the loss of the family member to the beneficiaries.
Under § 2 of the law: A person who…
- by his negligence causes the death of a person, or
- by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or
- operates a common carrier of passengers and by his negligence causes the death of a passenger, or
- operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or
- is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages.
If a person dies due to the negligence of another, the above referenced statute is applicable. However, not just anyone can step into the shoes of the decedent to pursue a claim against a responsible person or organization. The only person eligible to bring suit against a potential Defendant under the Wrongful Death Statute is the Personal Representative of the Estate. A Personal Representative (“PR”) is the legal title of the person formerly referred to as the “administrator” “administratrix” “executor” or “executrix.” The PR is allowed to bring claim for Wrongful Death on behalf of the statutory beneficiaries of the decedent. In other words, the PR pursues the claim against the Defendant and if there is a monetary recovery- that money goes to the heirs of the decedent as laid out in the law. Generally, the beneficiaries are the spouse and children of a married decedent. If there is no spouse or children then the recovery goes to the next of kin of an unmarried decedent.
The Wrongful Death statute lists ten elements that are descriptive of various aspects the Court will award damages for: loss of services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered. These items provide compensation for the loss of the relationship between the decedent and his or her beneficiaries. As a result, the beneficiaries are awarded money for their loss. Under the Wrongful Death Statute, there are some damages that go to the Estate rather to the beneficiaries. For instance, if the decedent suffered conscious pain and suffering between the time of the injury and the time of his death, under section 6 of the statute, this may allow the Estate to recover. Any money recovered becomes an asset of the Estate, unlike the other damages which go directly to the beneficiaries. In order to determine who gets what from an Estate- the will of the decedent controls who is a beneficiary.
Pursing claims under the Wrongful Death statute can be complicated and involve a multitude of moving parts. From determining whether you may have a Wrongful Death claim, who the Personal Representative should be, or whether or not a claim for conscious pain and suffering should be pursued, are matters that should be discussed with an attorney. Our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.